Amendment 62 backers lose round one

By Marianne Goodland

Backers of the “Personhood” amendment who attempted to force a change to the voter guide “Blue Book” were turned back in their efforts in Denver District Court last week. But despite the costs that it might incur, an appeal is planned, say Amendment 62 supporters.

Judge Robert S. Hyatt accepted a motion from the defendants, the Colorado General Assembly’s Legislative Council, to dismiss a lawsuit filed Sept. 20 by Amendment 62 proponents Personhood Colorado. The lawsuit claimed the Blue Book used false statements regarding the amendment and was not fair and impartial as is required by Colorado law.

At issue, according to the lawsuit, is the use of “deliberately false statements” in the section on “arguments against” Amendment 62, and complaints that the Legislative Council did not use the arguments supplied by Personhood Colorado in the “arguments for” section. The amendment says “‘person’ shall apply to every human being from the beginning of the biological development of that human being.” The Blue Book points out that “biological development” is not defined in the measure, and says in the “arguments against” section that “biological development” is not a commonly accepted medical or scientific term.

The lawsuit said supporters of Amendment 62 disputed this statement repeatedly, throughout the drafting of the amendment right up to the final hearing on the Blue Book language, which was held on Sept. 1.

The lawsuit also noted repeated requests from Personhood Colorado during the drafting process to change “human life” to “human being” in the “arguments for” section. During the Sept. 1 hearing, a Legislative Council staffer explained that the term “human life” was taken from the 2008 Blue Book’s language on Amendment 48, an initiative very similar to Amendment 62 that voters rejected by more than a 2-1 margin. The plaintiffs argued against that language with the 2010 version, stating that the term “human being” was more accurate, and that “human life” could be defined by opponents as trying “to grant legal rights to skin cells.” The plaintiffs also said that the “arguments against” incorrectly asserted that passage of Amendment 62 would prohibit treatment for miscarriage.

The Blue Book is a publication of the Legislative Council. It includes the language of all ballot initiatives for the November election, both those derived from citizen-initiated petitions and referred measures from the General Assembly. The Blue Book includes sections on “arguments for” and “arguments against” for each initiative, and it also includes recommendations from the Commissions on Judicial Performance regarding retention of judges ranging from the Colorado Supreme Court to local county courts. This year’s Blue Book covers three referred measures, six citizen-initiated measures, and retention recommendations for 139 judges. It is mailed to registered voters throughout the state; this year 1.85 million Blue Books were mailed, according to Amy Zook of the Legislative Council.

Initially, the plaintiffs asked for a temporary injunction to halt the printing and mailing of the Blue Book. But by the time the lawsuit was filed on Sept. 20, the final language had been available on the Legislative Council’s website for a week, most of the printing was already done and the voter guides were already mailed and in the hands of at least some of the state’s voters. The plaintiffs amended their original complaint to ask that the Legislative Council issue a press release stating that the ballot analysis on Amendment 62 “was under judicial review and may be modified to comport with the Colorado Constitution.”

In making his ruling, Hyatt chastised the plaintiffs, indicating they had waited too long to take action. The plaintiffs “knew this issue was rearing its head as early as June, when the Legislative Council did not remove the contested assertions that became the basis for this,” Hyatt said. “July, August and September have gone by, and everyone in this room has already gotten the Blue Book. The court is not in a position of going around the state picking them up.”

Hyatt also rejected the request for a press release, stating that any relief provided by the court would have “no meaningful impact.”

Defense attorney Richard Kaufman of McKenna Long & Aldridge argued the Blue Book was not subject to lawsuits because the council is an agent of the Legislature, which is immune from lawsuits. Kaufman also defended the council and the Blue Book in a 2006 challenge brought by supporters of Amendment 44, on marijuana possession. That case got the same response from the courts as did the Personhood lawsuit.

At the heart of the council’s defense, however, was that the court did not have jurisdiction over the Blue Book. Its production is akin to a committee meeting of the Legislature, Kaufman told the court. If the court were to intervene, it would violate the separation of powers and would attempt to usurp the function of the Legislature.

Kaufman also said the statute cited by Personhood Colorado was inaccurate because it applied to a different section of election law.

Gualberto Garcia Jones of Personhood Colorado argued that the case deals with an act of a state official that is “not in keeping with the constitution that keeps the initiative process fair and accessible to regular folk.” He also said that in drafting the Blue Book the Legislative Council is not crafting laws or engaged in the legislative process. “I don’t believe the court would be injecting itself into the legislative process,” he said. “This court’s action is needed to ensure that the Legislature doesn’t inject itself unconstitutionally into the initiative process.” If the court doesn’t protect the initiative process, the Legislature will impinge on that right, he pleaded, and without court action, “what’s the recourse for citizens to protect that right?”

Garcia Jones’ arguments hinged on C.R.S. 1-1-113, which applies to neglect of duty and wrongful acts by officials. In their amended motion, the plaintiffs claimed they had a right to challenge the ballot analysis under C.R.S. 1-1-113.

As to relief, “it wouldn’t cost the state anything” to produce a press release, Garcia Jones argued. It would be an effective way to notify voters that the ballot analysis is under judicial review and for them to wait for a “fair and impartial determination.”

Kaufman said the statute in question applies only to general and primary elections and not the Blue Book.

Hyatt, in announcing his ruling, pointed out that the Colorado Supreme Court had previously ruled that courts lacked jurisdiction over uniquely legislative functions, and that the separation of powers prohibits judicial interference in the legislative process. Hence, “courts cannot interfere with the ongoing legislative process except in extraordinary circumstances,” he said. With the exception of responding to interrogatories posed by the General Assembly or the governor, courts are “forbidden from interfering in the ballot initiative process prior to the adoption of an initiatives.” In addition, courts have long recognized that the judiciary “cannot substitute its judgments for the judgment of the legislature,” Hyatt said.

In addition, unless statutes give the court authority to review legislative conduct, the court doesn’t have that jurisdiction, he explained. He agreed with Kaufman that the statute cited by Garcia Jones did not apply.

Following the hearing, Garcia Jones and supporters vowed to appeal the ruling. “It is illogical,” he said of Hyatt’s ruling. “What recourse do we have” if not to the courts?

Hyatt’s ruling also provides for attorneys’ fees to be paid by the plaintiffs, and an appeal would add to that cost. But Garcia Jones said he was “not afraid” of attorneys’ fees. Preventing the abortions of 20,000 children “is worth the cost of court fees...It’s a good fundraiser,” he told reporters.